FEDERAL COURTS-GRANTING OF NEW TRIAL ON INITIATIVE OF THE COURT

Following conviction for violation of a federal statute, petitioner was granted his release on a writ of habeas corpus by a federal district court, on the basis of uncontroverted testimony that his counsel had not been present when the jury returned its verdict. Within ten days of this release, a motion for rehearing was filed, supported by affidavits that his counsel actually had been present. On subsequent hearing, the court set aside its former order and remanded petitioner to custody, on the theory that his release was obtained by means of a fraud on the Court. The present action was a habeas corpus proceeding challenging the remanding order.

Held, the remanding order amounted to the granting of a new trial on the court's initiative and, being made after the statutory period had expired, was void. Thomas v. Hunter, (D.C. Kan. 1948) 78 F. Supp. 925.